Q&A: Permissions

Q.  When do I need permission to use someone else’s material, such as song lyrics or poetry, in my novel?

A.  The answer is simple: whenever the failure to seek permission will result in copyright infringement.  Since 1976,U.S.copyright is automatic when an original work — text, art, photos or music — is created and fixed in a copy or recorded for the first time.  Neither registration nor copyright notice is required.  Reproducing someone’s copyrighted work without their permission — even if you give them attribution – is infringement.

It is safest to assume, therefore, that you must get permission from the copyright owner for all material – text, quotes, lyrics — unless the material falls into one of the following two narrow categories:

1.  Public domain material.  Public domain material includes items that cannot be copyrighted (ideas, titles, names, short phrases, and slogans); works whose copyright expired and/or was not renewed (including all work created beforeJanuary 1, 1923); most federal government documents (but not those created by private contractors); and many state government documents and publications.

2.  Fair Use.  You also don’t need permission if your use of the material qualifies as “fair use” under Section 107 of the Copyright Act.  In general, however, fair use always is a short excerpt used in connection with genuine criticism, parody, or teaching.  Use of material in a review or scholarly article is fair use; use in novels is not.  (For example,  including lyrics from the Rolling Stones in your novel is not fair use.)

In theory, getting permission should be easy – just find out who owns the copyright and ask.  In practice, however, it can be tough.  Publishers are easier to track down than authors, and they usually can put you in touch with the author.  Libraries have many directories available, such as the Literary Marketplace, to help you find publisher’s names and addresses.  The U.S. Copyright Office (loc.gov) also will research copyright ownership for a fee.

Many copyright owners use licensing agencies to handle permissions such as theCopyrightClearanceCenter(http://www.copyright.com).  You can locate song lyric ownership through the American Society of Composers, Authors, and Publishers (ASCAP) (http://www.ascap.com/index.html ); Broadcast Music Incorporated (BMI)

(http://www.bmi.com/home.asp); The Harry Fox Agency, Inc. (HFA) (http://www.nmpa.org/hfa.html); and SESAC (http://www.sesac.com).

Unfortunately, getting permission from an agency usually involves paying at least a nominal fee.  In many cases there will be no fee, or a nominal fee charged by the owner, but in other cases the fee will be prohibitive for your projected use.

What if you can’t locate the owner?  The simple answer is, you can’t use the material.  It’s no defense in an infringement claim that you couldn’t locate the author.   Instead, try to find some other excerpt that suits your purpose.

Daniel Steven is Chairman of the MWA Contracts and Grievances Committee and a publishing and media attorney (www.publishlawyer.com).  This column provides general legal information; consult an attorney for application of the law to your specific circumstances.

© 2006 Daniel Steven